In 2017, the United Nations Special Rapporteur on violence against women, its causes and consequences, issued a report clarifying that protection orders, which aim to provide immediate relief and protection to a survivor of domestic violence, are part of a State’s due diligence obligation to combat violence against women. Protection orders, which can be civil or criminal, require a perpetrator of domestic violence to leave a shared residence and to keep at a certain distance from the survivor and her children. The orders may also, temporarily, mandate maintenance and support services for survivors.
Research around the globe has shown that civil protection orders simultaneously protect and empower survivors, while encouraging survivors to access justice services. This is because survivors can initiate a civil protection order on their own terms, deciding its parameters and contents. Through this approach, the survivor will have a sense of empowerment as she takes steps to reclaim her autonomy and create space to consider her options and next steps.
Notably, over the past ten years a small but strong wave of legal reform has been washing over the Arab region, resulting in several pieces of legislation focused on improving women’s rights. Significantly, this includes standalone domestic violence legislation. As of 2019, such laws exist in six States, Jordan, Saudi Arabia, Lebanon, Bahrain, Tunisia, and Morocco, with more underway. While each law responds to its context, all have provisions for protection orders. This measure is groundbreaking given the stigma around family violence as well as the primacy placed in the region on male privilege within the household and ensuring family cohesion at all costs.
A recent study and policy brief by the United Nations Economic and Social Commission for Western Asia’s (ESCWA) Centre for Women analyze protection order legislation in the States through the lens of international good practice and the State’s due diligence. The research finds that provisions are generally aligned with good practice, indicating substantial progress with Arab States’ international obligations. Despite this, no State has enacted comprehensive legislation that encompasses all the necessary protection protocols to meet survivors’ needs. There are several clauses within national legislation that intersect with good practice. For example, all States bar the perpetrator from contacting or harming the survivor, allow the survivor to access the family dwelling, and require the perpetrator to leave the family home. The perpetrator is also barred from damaging the survivor’s personal property or property held in common and is denied access to jointly held assets. In most cases, the perpetrator can be compelled to provide financial assistance and pay costs resulting from the violence.
Survivors in the six States also have access to different types of orders, including civil and criminal orders, in addition to ex parte orders. As an emergency mechanism, ex parte orders respond to situations of immediate danger and provide a window of time for the survivor to obtain a reprieve from the violence. Legislation in Bahrain, Jordan, Saudi Arabia, Tunisia, and Lebanon outline the provision for such orders.
Complementing ex parte orders, long-term orders serve to reduce the number of times a survivor goes to court. These also provide the opportunity for a survivor to assess her choices and access psycho-social, medical and/or legal services. Focusing on civil protection orders, there appears to be no average length. Tunisia’s Organic Law no. 2017-58 allows protection orders up to six months that can be extended once by a family court judge, while Bahrain’s Law no. 17 (2015) authorizes protection orders for one month, which can be extended to three months in case of a violation.
Civil protection orders should not require additional legal proceedings, nor should they preclude pursuing such proceedings. Many of the States reviewed – Lebanon, Jordan, Saudi Arabia, and Tunisia – follow this practice. Similarly, the burden of proof should be lower for civil orders. Thus, a survivor’s live testimony or sworn statement should be sufficient evidence. In Bahrain, an affidavit from the survivor is adequate while additional evidence is optional, whereas Lebanon’s Law no. 293 (2014) recommends the submission of supporting documents, such as medical reports, documented threats, or accounts from witnesses.
The provision of support services, particularly access to timely medical care and emergency shelter, is notably present in all legislation. Jordan, Morocco, Tunisia and Saudi Arabia call for shelter and medical care for survivors, or a combination. Bahrain’s law calls for a survivor to obtain counselling services, medical care, rehabilitation and/or shelter, but notes that rehabilitative services should also be available for the perpetrator. Lebanon’s law clarifies that when a survivor needs medical care due to violence, it should be at the expense of the perpetrator.
Despite these positive provisions, some laws require thoughtful amendment.
Many Arab States adopt broad definitions of what constitutes violence within marriage or the family, including sexual violence, yet, no State has explicitly criminalized marital rape. Instead loopholes in the legislation are maintained allowing for so-called ‘marital rights’ (i.e., the right to sex) to persist, which are, in turn, perpetuated (and legitimized) by personal status laws. This debate is most prominent in Lebanon’s law, which some argue has codified marital rights.
Another concern is the usage of reconciliation in the legislation, which is not considered good practice as it assumes that a perpetrator and a survivor have equal bargaining power. In rare cases, there are stipulations that protection orders may be removed if the survivor ‘chooses’ to reconcile with the perpetrator. This is the case under Jordan’s Law no. 6/2008 (updated 2017), where reconciliation and mediation services are an option if there are no criminal charges. Saudi Arabia’s Law of Protection from Abuse (2013) indirectly references reconciliation when it aims to provide family and social counseling to couples. Morocco allows protection orders to be cancelled in the case of reconciliation, which may add undue pressure on the survivor to drop a claim.
Child custody provisions, inherently based on personal status laws, often conflict with protection order legislation. Tunisia is the only Arab State that explicitly notes that the survivor maintains custody and that visitation must be based on the best interest of the children. In contrast, in Lebanon, child custody is dealt with under the jurisdiction of the one of the 15 personal status laws, to which Law no. 293 must defer. This means that children legally included under the protection order are only those within the legal age of custody, resulting in unequal application of the law. The presence of these gaps indicates that more needs to be done.
Protection orders serve as part of a coordinated response to combating domestic violence when coupled with shelter, psycho-social counseling, legal support and safety planning, among other services. While Arab States acknowledge the need for comprehensive legislation to respond to violence against women, reform has been piece meal and the explicit provision of protection orders is primarily within the domain of standalone legislation. Furthermore, data is lacking on protection order usage and impact. For States developing civil protection order legislation, efforts must be taken to ensure that international good practice is observed and that survivors are at the center of the approach.